Pacific Southwest Airlines

National Labor Relations Board - Board Decisions

Feb 5, 1973

201 N.L.R.B. 647 (N.L.R.B. 1973)

PACIFIC SOUTHWEST AIRLINES 647
Pacific Southwest Airlines and Lithographers and
Photoengravers International Union , AFL-CIO,
Local 227. Cases 21-CA-10239 and 21-CA-10255
February 5, 1973
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On June 23, 1972, Administrative Law Judge'
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief and the General
Counsel filed cross-exceptions and an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the Administrative
Law Judge's rulings, findings, and conclusions and to
adopt his recommended Order with the following
modifications.
We disagree with the Administrative Law Judge's
conclusion that the Respondent did not violate the
Act when it canceled previously promised wage
increases. Correlatively, we find merit in the conten-
tion of the General Counsel that when Respondent
withdrew the wage increases in the face of the
Union's organizational campaign, it interfered with
the Section 7 rights of its employees in violation of
Section 8(a)(3) and (1) of the Act.
On or about August 5, 1971, Irwin, Respondent's
printing and publications manager, informed the
print shop employees individually that they would be
granted substantial wage increases retroactive to
August 1, 1971. Thereafter, on August 9, upon
receipt of the Union's letter with enclosed authoriza-
tion cards signed by a majority of the print shop
employees demanding recognition and collective-
bargaining negotiations, and following consultation
with its attorney, Respondent decided to cancel the
previously promised retroactive wage increases.2
Pursuant to this decision, the next day, August 10,
Manager Irwin summoned most of the employees to
I The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
E Respondent 's attorney advised of the dangers in granting improve-
ments in economic benefits during the midst of a union campaign and noted
in particular that Respondent 's planned wage increase did not comport with
past practice , both to timing and method.
3 Employees Fisher and Hover, although at work that day, were not
invited to this meeting.
4 In his disposition of this issue , the Administrative Law Judge
concluded that Supervisor Heck's remarks to employees wherein he linked
the possible restitution of the canceled wage increases to the removal of the
201 NLRB No. 81
his office and informed them that the promised wage
increases would be canceled in view of the Union's
demand for recognition, pointing out that the law did
not permit the Company to provide higher wages or
benefits which could persuade employees not to
support the Union.3
As noted above, contrary to the Administrative
Law Judge, we find that the Respondent. violated
Section 8(a)(3) and (1) of the Act when it announced
the withholding of, and did withhold, the previously
promised individual wage increases. To be sure, an
employer acts at his peril when he grants or
withholds increases in economic benefits during the
pendency of a union organizational campaign.
However, each case turns on its own particular facts
and circumstances. Thus, as a general rule, increases
granted on the basis of previously announced plans
or in accordance with established practice, or
business necessity, have not been found violative of
the Act. Champion Pneumatic Machinery Co., 152
NLRB 300; Selb Mfg. Co., 172 NLRB No. 218.
Similarly, the withholding of increased benefits, the
mechanics and resolution of which have not been
finally formulated, have also not been found viola-
tive of the Act. The Great Atlantic & Pacific Tea
Company, Inc., 192 NLRB No. 83.
However, in the latter cases, full explanation of the
reasons for the withholding along with the assurance
of future consideration of the withheld benefits,
notwithstanding the outcome of the union's election
campaign, serve to dissipate any assumption that the
employees may or may not have that the union's
presence is the sole obstacle to the ultimate realiza-
tion of the promised benefits. See Louisiana Plastics,
Inc., 173 NLRB 1427, 1428.
In the instant case, the Respondent's cancellation
announcement was unaccompanied by any assur-
ances of future consideration or predicated on any
economic considerations. Moreover, at least two out
of the six employees involved were purposely omitted
from the meeting at which the announcement was
made. In view of the foregoing and noting the fact
that a supervisor at a later date sought to capitalize
on the withholding of benefits by indicating that the
increases would be favorably considered on the
demise of the union,4 we find that the Respondent's
action interfered with the employees Section 7 rights
Union are irrelevant to finding a violation. In support of this conclusion, the
Administrative Law Judge pointed out that Heck was "a low level
supervisor who did not participate in the decision to withhold wage
increases and presumably because of his lowly status has nothing to do with
such matters as decisions over wage increases." We reject this finding. It is
well settled that promises , threats, or other coercive remarks by low echelon
supervisors tend to interfere with or restrain employee rights in the same
way as such conduct by other supervisors or managers . Accord: The
Conolon Corp., 175 NLRB 27. Further, we find it to be immaterial to our
resolution of the issue that Heck may have had no role in the formulation of
managerial decisions governing wage increases.
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in violation of Section 8(a)(3) and ( 1) of the Act. Ring
Metals Company, 198 NLRB No. 143. In the
circumstances of this case, this finding is fortified by
the numerous instances of 8(a)( 1) violations commit-
ted by the Respondent, as found by the Administra-
tive Law Judge and adopted herein. Considered
together with the 8(a)(3) discharge of employee
Hover, this conduct discloses that the Respondent
was imbued with a vigorous union animus , plainly
discernible by the employees, so that the abrupt
cancellation of the proffered wage rises would be
readily understood by them to comprise an act of
retaliation for their continued adherence to the
Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that Pacific
Southwest Airlines, San Diego, California , its offi-
cers, agents , successors , and assigns , shall take the
action set forth in the said recommended Order, as so
modified.
1. Insert the following provision as new subpara-
graph 1(f) and reletter the present subparagraph 1(f)
as subparagraph 1(g):
"(f) Announcing the cancellation of, or canceling,
promised wage increases exclusively because of the
advent of a union in such a manner as to convey to
employees that the obtaining of said benefits is
conditioned upon the employees' rejection of the
union."
2. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choosing
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any such
activities.
WE WILL NOT lay off or otherwise discriminate
against any employee for joining or supporting
Lithographers and Photoengravers International
Union , AFL-CIO, Local 227.
WE WILL NOT question you about your union
membership and activities or about the union
membership and activities of your fellow employ-
ees.
WE WILL NOT tell you we will close the print
shop if you join or support the above-named
labor organization.
WE WILL NOT threaten you with layoffs if work
is slack if you join or support the above-named
labor organization.
WE WILL NOT announce the cancellation of, or
cancel , promised wage increases exclusively be-
cause of the advent of a union in such a way as to
lead our employees to think that their obtaining
such benefits will be due to their rejection of the
union.
WE WILL NOT refuse to bargain collectively
with the above-named Union as the exclusive
representative of the employees in the bargaining
unit described below.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL pay Vernon Hover any wages he
would have earned from the date of his layoff on
August 24, 1971, until January 14, 1972, the date
we offered to reinstate him, less any interim net
earnings with the pay due , if any, computed on a
quarterly basis at 6 -percent interest.
WE WILL, upon request , bargain with the
above -named Union as the exclusive representa-
tive of all our employees in the bargaining unit
described below with respect to rates of pay,
wages , hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment . The bargaining unit is:
All lithographer employees employed by Pacific
Southwest Airlines at our facility located in San
Diego , California , excluding all other employees,
office clerical employees , and guards and supervi-
sors as defined in Section 2(11) of the Act.
PACIFIC SOUTHWEST
AIRLINES
(Employer)
PACIFIC SOUTHWEST AIRLINES 649
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, 849
South Broadway, Los Angeles, California 90014,
Telephone 213-688-5229.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO , Trial Examiner : The hearing in
these cases held on May 10 , 1972, is based upon charges
filed by the Union named above on August 23, 1971 (Case
21-CA-10239), and on August 30, 1971 (Case
21-CA-10255) and a consolidated complaint issued on
March 15 , 1972, on behalf of the General Counsel of the
National Labor Relations Board (Board) by the Regional
Director of the Board , Region 21 (Regional Director). The
consolidated complaint alleges that Pacific Southwest
Airlines (Respondent) has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act (Act). Respondent filed
an answer denying the commission of the alleged unfair
labor practices.
Upon the entire record , from my observation of the
demeanor of the witnesses , and having considered the post
hearing briefs submitted to me , I make the following:
at the hearing are whether the Respondent engaged in the
following conduct and by so doing violated the Act.
(a) Discharged employee Vernon Hover because of his
activities on behalf of the Union.
(b) Rescinded a previously announced wage increase to
dissuade employees from, or to punish them for, support-
ing the Union.
(c) Interrogated employees about their union activities
and sympathies and threatened them with certain econom-
ic reprisals if they supported the Union.
(d) Refused to bargain with the Union as the designated
bargaining representative of a majority of the employees in
an appropriate bargaining unit.
B. The Setting
Respondent operates a printing shop employing about
eight persons. On June 29 ,1 six of the print shop employees
signed cards designating the Union as their bargaining
representative. On August 9 Respondent received a letter
from the Union in which the Union claimed majority
status among the Respondent's print shop employees and
sought exclusive recognition and a negotiation meeting for
a collective-bargaining contract. Respondent did not
answer the letter but on August 20 filed with the Regional
Director a representation petition (Case 21-RM-1519)
asking for an election and alleging in substance that a
question concerning representation among its print shop
employees existed for the reason that the Union had
demanded recognition as the bargaining representative of
these employees. On March 16, 1972, simultaneous with
the issuance of the consolidated complaint in this case
which, among other things, alleges that Respondent was
obligated to recognize the Union, the Regional Director
dismissed the Respondent 's representation petition for the
reason that a question concerning representation did not
exist.
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Pacific Southwest Airlines, a scheduled passenger air
carrier operating solely within the State of California with
its principal place of business located in San Diego,
California, annually receives gross revenues in excess of
$500,000 and purchases and receives goods valued in
excess of $50,000 directly from suppliers located outside of
California. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
ii. THE LABOR ORGANIZATION INVOLVED
Lithographers and Photoengravers International Union,
AFL-CIO, Local 227 is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The ultimate issues posed by the pleadings and litigated
C. The Status of Jim Heck
General Counsel and the Charging Party contend that
Jim Heck is a supervisor within the meaning of Section
2(11) of the Act. Respondent urges that Heck is a rank-
and-file employee . Heck's status is relevant in determining
if certain alleged unlawful conduct engaged in by Heck is
attributable to Respondent, and whether he is in the
appropriate bargaining unit.
Respondent operates three departments under one roof,
adjacent to one another, which are apparently related; the
print shop department, the technical writers department,
and the publication or revision department . The print shop
employs eight persons. There is no evidence as to the
number of persons employed in the other two departments.
Each department has a leadman reporting to Thomas
Irwin, the printing and publication manager. Irwin is
responsible for the operation of all three departments. Jim
Heck is the leadman in the print shop. Only rarely does
Heck perform production work. He schedules the work,
tells employees what work to do, assigns employees to their
jobs, and grants employees permission to take time off
from work provided it is for less than one day . It is Heck's
1 Unless otherwise specified, all dates herein refer to the year 1971
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibility that production in the department is on
schedule and of good quality. The employees in the
department look upon him as being in charge and were so
advised by Irwin . Thus, employee Fisher credibly testified
without contradiction that at the time Heck was designated
leadman that Irwin informed employees that Heck "would
be leadman and in charge of the [print shop ]."
Although Heck does not possess the authority to hire,
fire, layoff, recall, promote, or discharge employees or to
effectively recommend such action, this does not prevent
him from being classified as a supervisor if he is qualified
as such under the other provisions of Section 2(11) of the
Act. Ohio Power Co. v. N.L.R.B. 176 F.2d 385,387 (C.A. 6),
cert. denied 338 U.S. 899. Heck is not engaged in regular
production work but directs employees in their work tasks,
gives them orders and is responsible for shifting them from
job to job. Also, he deals with employees' requests for time
off. Further, Heck has been represented by Manager Irwin
as being in charge of the department. In view of the
foregoing, particularly the evidence that Heck responsibly
directs the work force exercising his independent judgment
in these matters , I find that Heck possesses sufficient
authority to qualify him as a supervisor under Section 2(11)
of the Act.
In reaching this conclusion I have noted that the record
does not show, nor is it contended, that work in the print
shop is of a routine and repetitious nature thereby
indicating that Heck's direction of the employees was
routine and did not entail the type of independent
judgment necessary to confer supervisory status. Nor was
the testimony of either Irwin or Heck sufficient to support
such an inference . Irwin's testimony on this matter in its
entirety is:
Q. Would you tell us about Mr. Heck's duties in
general?
A. Well, to make sure that people do the work that
needs to be done, and fulfill the obligations of the
people in the print shop as per whatever I need.
Q. And do you give these instructions to Mr. Heck
with respect to the work?
A. Yes, to see that these are fulfilled.
This ambiguous description of Heck's duties, not
corroborated by Heck's testimony , is not sufficient to
establish that Heck's direction of employees was of a
routine nature. Heck, who testified for Respondent, did
not indicate that his assignment of work was routine. To
the contrary, he testified that the nature of his job was "to
see that the work came in and got out; and that the various
personnel did the work." Plainly indicating a need on his
part to exercise independent judgment in directing the
employees' work. Based upon the foregoing, and the record
as a whole, I am of the opinion, and find, that Jim Heck at
all times material in this case was a supervisor within the
meaning of Section 2(11) of the Act.
D. Interference, Restraint, and Coercion
Late in July, Manager Irwin, according to the credible
and uncontradicted testimony of employee Joseph Bow-
2 Bowman testified that during the 5-1 /2 hours at the bar he drank
between six to eight 8-ounce elasses of beer The amount of alcoholic
man, in the presence of Leadman Heck , asked Bowman
either , "I hear you signed Union cards" or "I hear you
joined the Union ." Bowman answered that the employees
had signed union authorization cards . Irwin asked for the
names of the card signers . When Bowman named the card
signers Irwin declared that the employees should have gone
to another union which he named rather than the Union,
and warned that the Company would not "go along" with
the Union but, "they would close the doors of the shop
first."
Irwin , in interrogating Bowman , had no legitimate
purpose, nor did he inform Bowman of any such purpose,
nor give him any assurances against reprisal ; rather he
threatened that the print shop would be closed if the
employees continued to support the Union. Based upon
the foregoing , I find that Respondent violated Section
8(a)(1) of the Act by Irwin's interrogation of Bowman
about his union membership and activities and the union
membership and activities of his fellow employees. Also, I
find that Respondent violated Section 8(a)(1) of the Act by
Irwin's threat to Bowman that Respondent would close the
print shop if the employees supported the Union.
On August 10, after work , Bowman and Heck went to a
bar for drinks where after about 1 hour they were joined by
Irwin. The three stayed for approximately another 4 hours.
There is no evidence the beer consumed by either Heck or
Irwin impaired their faculties so that they did not realize
what they were saying , or that Bowman because of the beer
misinterpreted what they told him.2 Irwin and Heck,
according to the undenied and credible testimony of
Bowman, asked him to send a letter to the Union revoking
his Union authorization card. In trying to persuade
Bowman to send such a letter, Heck told him the
Respondent "would not buy the Union-they would not
go along with it, and they would close the doors-the shop
first." When Heck uttered the threat of shop closure, Irwin
remained mute; did not disavow the threat, and at the end
of the conversation stated that if Bowman ever told anyone
about the conversation he would deny the whole thing. For
the next week and a half Heck on several occasions,
according to Bowman's credible and undenied testimony,
asked Bowman if he had sent his letter of revocation to the
Union, told him that two other named employees (one of
whom was Arreola) had already done this and warned
Bowman "that PSA would close the doors before they
would let the Union in."
Based upon the foregoing , I find that Respondent
violated Section 8(a)(1) of the Act when Heck and Irwin
asked Bowman if he would revoke his union authorization
card, for this question or request placed Bowman in the
position of declaring himself as to union preference just as
if he had been directly interrogated as to such preference.
By engaging in this conduct, especially in the context of the
contemporaneous threat of punt shop closure if the
employees supported the Union, the Respondent interfered
with, restrained, and coerced employees in the exercise of
their Section 7 right to support the Union. I further find
that Respondent violated Section 8(a)(1) of the Act by
Heck's threats to Bowman of print shop closure if the
beverage , if any, consumed by Heck or Irwin is not in the record
PACIFIC SOUTHWEST AIRLINES
employees supported the Union. The fact that both Heck
and Irwin were friends of Bowman does not in my opinion
lessen the coercive impact of this conduct on employees.
For, the coercive impact of the conduct of a person does
not derive solely from the hostility of the speakers. Unless
the context in which the coercive interrogation or warning
of reprisal takes place makes it unlikely the employees
would believe the supervisor to be accurately relaying
management's thinking, participation in union activities is
likely to be chilled whether or not the supervisor is
"friendly." As the Board observed (Caster Mold & Machine
Co., Inc., 148 NLRB 1614, 1621):
Warnings from a friendly supervisor, close to manage-
ment, are no less a threat than warnings from a hostile
supervisor. Indeed, warnings from such a friendly
source may carry an even greater aura of reliability and
truthfulness and may, therefore, in a sense , be doubly
effective.
Accord: N.L.R. B. v. Marval Poultry Co., Inc., 292 F.2d 454
(C.A. 4). Here the circumstances were such as to reinforce
the belief that Irwin and Heck were relaying management's
thinking.3 Irwin was, after all, the manager over the entire
printing and publication departments and was charged
with overall plant responsibility. His warnings of reprisals
were made to Bowman on two separate occasions, once
directly, and the second time when by remaining silent he
ratified Heck's almost identical warning. Heck's conduct
was virtually identical to Irwin's and in one instance took
place in the presence of Irwin. In these circumstances,
Bowman was bound to believe that Heck was acting under
instructions from Irwin. Indeed, there came a point in time
that Bowman, tired of being interrogated and threatened
by both Irwin and Heck went to Irwin and told him that
Heck was continuing to urge him to withdraw from the
Union, that he was fed up and tired of being manipulated,
and did not want to hear anything more about the Union.
Irwin replied, as credibly testified to by Bowman , "he did
not want me to feel like he was manipulating me or that he
was trying to persuade me in any way. And he said it was
my decision to make." Of course, Irwin's declaration was
not sufficient to dissipate or disavow any of the previous
unlawful conduct directed toward Bowman by either Irwin
or Heck. For, "it is well settled that statements of
neutrality, couched in general language, without any
specific reference to, or repudiation of, the prior unlawful
conduct of the employer's supervisory personnel do not
erase such prior unlawful conduct." A. P. Green Fire Brick
Co. v. N. L. R. B., 326 F.2d 910, 914 (C.A. 8).
The uncontradicted and credible testimony of employees
Hover and Einolander establishes that Heck interrogated
them about their union activities. Heck in the first week in
July, in the shop, asked Hover about the union authoriza-
tion card he had signed and specifically asked why money
was involved in the signing of the card. Hover explained it
was for the union initiation fee. And Heck, about August
11, in the shop, asked Einolander if he was going to send a
letter to the Union revoking his authorization card.
3 There is no evidence that Bowman failed to take Heck or Irwin
seriously or did not believe they were relaying the thinking of management
To the contrary, Bowman appears to have taken their warnings seriously for
he transmitted them to his fellow employees
651
Einolander said he was undecided . Later that day, Heck
repeated the same question , and in an effort to persuade
Einolander to send such a letter stated "as soon as [the
employees ] send the letters in, the strongest possibility of
us receiving our raises would be ." Later the same day,
Etnolander was in the darkroom with Heck and employee
Arreola and was told by either Heck or Arreola that
Arreola was going to send a letter to the Union revoking
his union card . Once again , for the third time that day,
Heck asked Einolander if he was going to send such a letter
to the Union. Einolander evaded answering the question.
Heck, as described above , in interrogating Hover and
Einolander had no legitimate purpose , nor did he inform
them of any such purpose , nor give them any assurances
against reprisal , rather he promised Einolander an increase
in wages if he revoked his union card. Based on the
foregoing , and especially when viewed in the context of
Respondent's other unfair labor practices , I find that by
Heck's interrogation of employees Hover and Einolander
about their union activities Respondent violated Section
8(a)(1) of the Act.
In paragraph 14 of the consolidated complaint the
General Counsel has alleged in substance that Respondent
through Irwin, during August , at Reuben's restaurant,
threatened employees with economic reprisals if they did
not abandon the Union. In support of this allegation,
employee Bowman testified that on August 5, Irwin at the
end of the workday invited him and his wife for a beer at
Reuben's. There, Irwin talked about the shop , about the
Union, and at an unspecified point in the conversation
said, now that the employees had gotten a raise, things
were going to be different , that he was going to lay people
off, and informed Bowman and his wife that representa-
tives of the union which represented the Company's ramp
agents smoked cigars , and looked like they came from
Chicago and were uneducated . It is my opinion , and I find
that viewed in its entire context , including its ambiguity,
the evidence is insufficient to establish that the remarks of
Irwin made to Bowman at Reuben 's constitute interfer-
ence, restraint , or coercion within the meaning of Section
8(a)(1) of the Act.
Employee Hover credibly testified that on or about June
30, the day after he signed the union authorization card,
that Heck in the print shop camera room told him that "if
the Union got in during the slack period [the employees],
would be laid off ." It had been Respondent 's practice not
to lay off employees during slack periods. Heck did not
specifically deny saying this to Hover. When asked by
Counsel for Respondent if he ever "made any threats or
predictions to any of the employees as to what would
happen if the Union came in," Heck answered , "I voiced
opinion, no threats ." I find that Heck 's warning to Hover
was on its face a threat of action to be taken by
Respondent rather than a prediction and as such was
violative of Section 8(a)(1) of the Act.4 In so finding, I
realize that this conduct was not specifically alleged in the
complaint . It took place , however , in the course of other
4 Assuming it can be construed as a prediction that the Union would
cause the Respondent to lay off employees during slack periods, there is no
evidence to establish that this prediction had any basis in fact . See N.L R B
v Gissel Packing Co., Inc, 395 U.S. 575.618.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
events which were alleged as unfair labor practices and is
closely related to such alleged unfair labor practices. Also,
Respondent did not object to its receipt, had full
opportunity to cross-examine and fully litigate, and, as
shown above, did litigate the issue. Under the circum-
stances, I have judged this conduct even though it is not
specifically alleged as an unfair labor practice; see, e.g.,
Monroe Feed Store, 112 NLRB 1336, 1337.
To sum up, I find, for the reasons set out above, the
Respondent violated Section 8(a)(1) of the Act by
interrogating employees about their union activities and
sympathies and about the union activities and sympathies
of their fellow employees, by threatening to close the print
shop and by threatening to lay off employees if the
employees supported the Union.
E. The Withdrawal of the Increase in Wages
The General Counsel contends that the announcement
of cancellation and the cancellation of a previously
announced wage increase by Respondent was made in
reprisal against the employees because of their union
activities and to discourage them from supporting the
Union, and as such violated Section 8(a)(1) and (3) of the
Act. Respondent urges that its conduct was lawful for the
reason that the wage increase was delayed upon the advice
of counsel upon the receipt of the Union's demand for
recognition and thereafter, upon being informed that the
Union would have no objection, Respondent placed the
wage increase into effect retroactively.
Respondent, according to the undenied and credible
testimony of employee Fisher, normally adjusted the
employees' wage rates on their anniversary dates. It also
appears, however, that some of the employees in the print
shop , including Fisher , received an increase in wages
during July. Nevertheless, on August 5, apparently within I
week after Manager Irwin found out from employee
Bowman that six of the employees had signed union cards,
Respondent told its print shop employees that they were to
receive a wage increase effective August 1. On August 9,
upon receipt of the Union's letter requesting recognition
and bargaining for the print shop employees, Respondent's
corporate treasurer telephoned its lawyer, Lewis Gardiner,
advised him of the Union's demand for recognition and
asked if the Company could proceed with the announced
wage increase. Gardiner asked about the company's
previous practice in giving wage increases to the print shop
employees and was informed that in the past increases
were granted on the employees' anniversary dates. At this
point, Gardiner expressed his opinion that there was a
good deal of trouble and risk for Respondent if it made
economic adjustments during a union organizing campaign
and recommended that the announced wage increase not
be implemented in the print shop. Following Gardiner's
advice , Respondent withdrew the increase in the print shop
but went ahead as scheduled and granted the increase to
the employees in the two other adjacent departments. Later
that same day or early the next morning, Leadman Heck
told employees their wage increases were frozen . Einolan-
der and Hover credibly testified that Heck told them they
would not receive the announced wage increase explaining
to them that the wages were frozen "pending the outcome
of the Union vote ." Employee Fisher testified that Heck
told him his pay raise had been stopped "because you
voted for the Union, and the Union would get you a raise."
None of the other employees who testified as to what Heck
told them (Einolander , Hover , and Bowman ) corroborated
Fisher . Einolander who impressed me as an extremely
forthright and reliable witness testified that when Heck
explained to him that the wages were frozen "pending the
outcome of the Union vote ," that Heck was standing
alongside of Fisher . I am of the opinion and find that
Fisher's testimony on this point is not reliable.
Irwin , the printing and publications manager , on August
10 at the end of the workday at a meeting of the print shop
employees , formally explained the decision to cancel the
wage increase . Irwin told the employees that the compa-
ny's main office after receiving a letter from the Union had
informed him that he was not permitted to say anything
about the union situation to the employees. Irwin also told
them that Respondent had to cancel the announced wage
increases and freeze wages because Respondent had
received a letter from the Union and "might lose by
default" explaining , that under the laws and regulations the
Company was not allowed to give any raises or benefits to
try to persuade the employees not to choose the Union.
Irwin also stated that if anyone had any questions he
would write them down and check with the Company and
then let them know the answers . One employee asked how
could an employee get out of the Union, another asked if
the employees could withdraw from the Union by sending
the Union a letter, and another asked if the Union was
voted down in an election would the employees receive
their pay raises.
The foregoing paragraph of what transpired at the
meeting of August 10 is based on a synthesis of the credible
and undenied testimony of employees Bowman and
Einolander5 except for Bowman's testimony given on
cross-examination to the effect that Irwin told the
employees that Heck would give them the answers to their
questions . On direct examination both Bowman as well as
Einolander testified that Irwin, in effect , stated that he
would be the one who would transmit the answers to their
questions . There was no indication whatsoever in their
testimony that Irwin had told the employees that Heck
would serve as a conduit for the answers to their questions.
Then, on cross-examination, when asked if Irwin ever
answered any of the questions Bowman testified "not
directly," and for the first time explained that Irwin had
told the employees they would get their answers through
Heck . I received the distinct impression from observing
Bowman that this portion of his testimony was improvised.
In these circumstances, and in view of Einolander 's failure
to corroborate Bowman , I find Bowman 's uncorroborated
testimony that Irwin told the employees Heck would
transmit the answers is not reliable . But, I further find that
Bowman credibly testified that Heck sometime following
the meeting of August 10 told him that if the employees
S I have not relied on Heck's testimony regarding this meeting inasmuch was vague and hesitant and he impressed me as having no independent
as he demonstrated complete confusion about the meeting His testimony recollection of what took place
PACIFIC SOUTHWEST AIRLINES
voted down the Union that Respondent "could not
guarantee we would still get our raises but that things
looked pretty good."
During October, Respondent's attorney, Gardiner, tele-
phoned the Union's attorney and advised him that
Respondent did not pay the August 1 pay raises to the
print shop employees because of his advice given in view of
the Union's demand for recognition. Gardiner asked the
Union's attorney if the Union had any objection to the
Respondent paying the wage increase, and was informed
that the Union not only did not object but insisted that the
raises be paid. Immediately after, on October 23, Respon-
dent notified the employees that the August wage increases
which had been previously canceled were now being put
into effect retroactive to August 1. In fact they were put
into effect at that time.
To sum up, Respondent hard on the heels of its first
knowledge of the Union's success in its organizational
campaign among the punt shop employees announced a
general wage increase covering these employees which was
not consistent with its past practice regarding print shop
wage increases. Upon receipt of the Union's request for
recognition, Respondent's attorney learning that the wage
increase was not consistent with past practice advised the
Company not to implement the increase explaining that
there was a good deal of trouble and risk for Respondent if
it made economic adjustments during a union organizing
campaign. Respondent followed this advice and the next
day its top management official over the print shop
announced to the employees that the wage increases had
been canceled, explaining that under the laws and
regulations the company was not allowed to give improved
benefits including an increase in wages to try to persuade
employees not to choose a union. Thereafter, about 2
months later when the Union indicated it would voice no
objection, Respondent put into effect the increases
announced in August retroactive to August 1.
Based on the foregoing, it is my opinion and I find that
Respondent did not violate Section 8(a)(3) and (1) of the
Act when it announced the withholding or by its actual
withholding of the August wage increases . In arriving at
this conclusion, I have considered but find inapposite those
Board cases holding that an employer may grant benefits,
even after a union has commenced its organizational
campaign, if it would have granted these benefits had the
union not been in the picture . See, e .g., McCormick
Longmeadow Stone Co., Inc., 158 NLRB 1237, 1242. 1 have
been guided by those decisions which hold that an
employer may withhold benefits during the pendency of a
union's organization campaign, provided, however, it
makes clear to the employees that its only reason for
withholding expected benefits was to avoid the appearance
6 1 realize the leadman Heck told certain employees immediately pnor to
the August 10 meeting that their wages were frozen "pending the outcome
of the Union vote " It is clear , however, that Heck, a low level supervisor at
the lowest rung of supervision, played no part in the decision to withhold
the wage increase Under the circumstances , I am of the opinion that this
ambiguous statement made by Heck is hardly relevant to an assessment of
the legality of the announcement made by Irwin at the August 10 meeting
In any event, any interference of employees' Sec 7 rights which might have
been created by Heck 's ambiguous remark was dissipated by Irwin's
subsequent announcement
r This conduct which was not specifically alleged in the consolidated
653
of interference and the commission of an act which would
be considered an unfair labor practice . Montana Lumber
Sales Inc., 185 NLRB No. 12; Uarco Incorporated 169
NLRB 1153; cf. The Great Atlantic & Pacific Tea Company,
Inc., 192 NLRB No. 83 . Here the top management official
over the print shop , acting pursuant to the advice of the
Company's lawyer, announced to the employees that the
reason for postponing the expected wage increase was to
avoid violating the law . The evidence is not sufficient to
establish that in deciding to withhold the wage increase
Respondent was motivated by union animus rather than
by a genuine desire to avoid the appearance of interfering
with employees' statutory rights and commission of an
unfair labor practices Nor , did Respondent's announce-
ment of the cancellation contain anything which I would
construe as a promise of benefit or threat of reprisal
contingent upon the outcome of the Union's organizational
campaign . Rather, the announcement seems to have been
merely an attempt by Respondent to remove itself from an
awkward situation, maintain its credibility among the
employees and yet not interfere with their right to make a
choice free of coercion . In reaching the foregoing conclu-
sion I have considered the fact that Leadman Heck sought
to capitalize on the absence of a wage increase by
connecting the absence with the Union or the employees'
support of the Union. Thus, sometime after August 10,
Heck told employee Bowman that if the employees voted
down the Union, Respondent could not guarantee they
would get their raises but "things looked pretty good."
And, on August 11, Heck told employee Einolander that
the sooner the employees sent letters to the Union revoking
their authorization cards the better would be the possibility
of their receiving the wage increases . These remarks may
constitute interference , restraint , or coercion of employees'
Section 7 rights.7 However, they were made by a low level
supervisor who did not participate in the decision to
withhold the wage increases and presumably because of his
lowly status has nothing to do with such matters as
decisions over wage increases. Under the circumstances, I
am convinced that the remarks of Heck are not relevant in
assessing either the validity of Respondent 's action in
withholding the wage increase or the legality of Irwin's
August 10 speech to the employees.
F. The Layoff of Vernon Hover
Hover was laid off on Tuesday, August 24. He was one
of seven employees employed in Respondent's print shop,
and was one of the six who attended a union meeting on
June 29 and signed union authorization cards. As demon-
strated above, Respondent was hostile toward the unioni-
zation of its print shop with top management (Irwin) and
complaint as an unfair labor practice , occurred in the course of other events
which were alleged as unfair labor practices and grew out of and are closely
related to such alleged unfair labor practices . Respondent had full
opportunity to cross -examine and to litigate the issue . Respondent however,
did not litigate the matter, it did not question Heck about these
conversations Because General Counsel had not put Respondent on notice
that this conduct was 8(a)(1) Respondent was under no obligation to get
Heck's version . Under the circumstances , I make no finding that
Respondent violated Sec . 8(axl) when Heck promised employees Bowman
and Emolander an increase in their wages if they withdrew their support
from the Union.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate supervision (Heck) warning that the Respon-
dent would close the print shop before it would accept a
union. Also, Heck warned Hover there would be layoffs
during slack periods if the Union got in.
Respondent knew that Hover was one of the employees
who had signed a union authorization card inasmuch as
described above, employee Bowman told Irwin the names
of the employees who had signed cards. Also, Respondent
on August 9 had received from the Union copies of the
union authorization cards signed by the employees
including the card signed by Hover.
Respondent's employees were paid in August on the 5th
and 20th of the month. Hover was laid off on Tuesday,
August 24, 2 weeks after the receipt of the Union's letter
demanding recognition and hard on the heels of the filing
of the Company's representation petition in Case
21-RM-1519 on Friday, August 20. Hover was informed
about his layoff by Irwin who explained that he was laid
off ahead of less senior employees because all of the
employees were classified and there was no more work left
in Hover's classification. Hover credibly testified that
previously he had not been told he had been assigned a job
classification.
Hover began work for Respondent on December 9, 1968,
and was the most senior employee in the print shop. At the
time of his layoff he spent most of the worktime doing
camera work. He was capable however, of performing
virtually all of the work in the print shop. Prior to Hover's
layoff, Respondent during its slack periods had never laid
off a single employee.
On the strength of the foregoing evidence, I find that the
General Counsel has established a prima facie case that
Hover's layoff was motivated by Respondent's union
animus. In these circumstances, it became incumbent upon
the Company, if it would avoid that result, to come
forward with a valid explanation for the layoff, inasmuch
as the "real reason lay exclusively within its knowledge."
N. L. R. B. v. Miller Redwood Co., 407 F.2d 1366, 1369 (C.A.
9); Heath International, Inc., 196 NLRB No. 42.
Respondent in its answer to the consolidated complaint
alleged that Hover was laid off because of a "diminished
workload." At the hearing, Irwin, the person who made the
decision to lay off Hover, testified that he was laid off
because "at the time (August 24) there was the least
amount of work in that particular area [referring to camera
work] and that job could have been covered most
successfully by [Irwin] because of that." It is undisputed
that at the time of the layoff there was "a diminished
workload" in the camera area as well as in other areas of
the print shop. But that does not end the matter. For, prior
to Respondent's knowledge of Hover's union activity, the
workload was diminished, yet Hover was not laid off.
Thus, Leadman Heck, who probably is in the best position
to gauge the workload of the print shop, testified for
Respondent that there was a "marked decrease" in the
8 Irwin did testify that the normal cyclical work slowdown in 1971 was
"unusual" due to the fact that the orders from Respondent 's subsidiary Val-
Car had decreased due to its anticipated termination of business But, he did
not testify nor is there any inkling from his testimony that this was the
reason for deviating from the past practice of not laying off employees
Moreover, it is clear from the testimony of Irwin and Heck that the
slowdown of the Val-Car work commenced as early as June yet Hover was
amount of camera work during June and July, and Hover
testified that the slump in work at the time of the layoff
had started "around the middle of July." Irwin testified
that the work performed by the print shop for one of
Respondent's wholly owned subsidiaries named Val-Car
had started to slow down about June. If, as Heck and Irwin
testified, the work in the print shop and in particular
camera work had slowed down in June or July, why was
there no layoff at that time? The answer is that slack
periods in the print shop were not unusual but that
Respondent has a policy of not laying off employees in
that department. Thus, Hover credibly testified that the
slump in work experienced at the time of his layoff was no
worse than usual and Irwin testified that each year the
print shop suffered cyclical slowdowns in work, and
further testified that at the time of Hover's layoff,
"everybody's work was slowing down, but . . . we do have
these slow down periods, which people were referring to. "
(Emphasis supplied.) In this last portion of testimony,
Irwin was alluding to the undemed and credible testimony
of employees Fisher, Bowman , and Hover. Fisher, em-
ployed since March 10, 1969, testified that in November
1970 until the middle of January 1971, there was a
slowdown of work on the presses, that even though he had
no work on his press until mid-January 1971, he was not
laid off but just cleaned his press and "worked around and
out," and further testified that the other press operators in
the print shop even though they did not have enough work
to keep them busy full time were kept on the job without
work. Bowman, who began work for the Company in
February 1970, testified that each year the print shop had
slack periods when work got slow, commencing in late
summer through the first of the year . During these slack
periods, no one was laid off, and Heck would tell him "to
look busy and to keep out of sight." And, Hover testified
that each year from December 15 through January 15
things in the department came almost to a standstill-there
was almost no work for anyone-and no one was ever laid
off. Irwin admitted that prior to Hover no one had been
laid off for lack of work in his 12 years in the print shop.
Unexplained is Irwin 's deviation from Respondent's past
practice of not laying off employees when he abruptly laid
off Hover soon after Irwin learned that the Union was
requesting recognition as the print shop employees'
bargaining representative and that Hover was one of the
employees who had authorized the Union to act as their
representative .8 Irwin's failure to explain this deviation
from past practice , coming right after learning of Hover's
pro-union sentiments when coupled with Irwin 's hostility
toward the Union leads me to believe and I find that in
laying off Hover, Respondent was motivated by its union
animus and that but for the Union's organizational
campaign there would have been no layoff.9
Aside from Respondent 's departure from its normal
practice of not laying off employees when Irwin laid off
not laid off then but two months later , soon after Respondent learned he
had designated the Union as his bargaining representative.
9 Consistent with its past practice of not laying off employees during
slack periods , Respondent apparently shortly after Hover's layoff, rather
than lay off employee Einolander , transferred him upstairs into the
publications department
PACIFIC SOUTHWEST AIRLINES
Hover, the General Counsel's case is substantiated further
by the inability of Irwin to remember when he decided it
was necessary because of lack of work to lay off Hover.
Irwin testified he could not remember when he decided
that the situation in the print shop warranted two fewer
people (referring also to the transfer of Einolander to
another department). He was then advised that the Trial
Examiner was not interested in the exact date and asked
when in relation to Hover's layoff did he make the decision
to lay off. In response , he testified "maybe-maybe a
week, I don't know." It would seem that if a decision to lay
off employees was based on legitimate business considera-
tions an employer would have no difficulty recalling when
such a decision was made, especially when as here it was
the first layoff in 12 years. Irwin professed an inability to
place this decision with any degree of exactitude. Irwin did
not impress me as being a candid witness . I was not
impressed by his demeanor. His professed inability to
recall whether or not he knew at the time of Hover's layoff
that Hover had signed a union card 10 or that employee
Arreola had withdrawn from the Union is incredible as
was his inability to recall when he was told Val-Car was
going to be dissolved or when he decided to lay off
Hover. ii In short, unless otherwise corroborated by
another witness or documentary evidence, I find Irwin's
testimony to be untrustworthy. In arriving at this conclu-
sion I have considered the fact that Irwin at the time of the
hearing was only recently out of the hospital and was still
taking medication . Because of the importance of his
testimony to Respondent and because of my impression
that he was not being completely candid in his testimony,
when I was notified by Respondent's counsel of Irwin's
situation, I immediately on my own initiative announced
that I was prepared to recess the case until such time as
counsel was of the opinion that Irwin was in a better
condition to testify. Counsel advised me that he desired to
proceed with his case-in-chief.
To recapitulate, in laying off Hover, Respondent's most
senior employee, Irwin not only deviated from the
preexistent practice of not laying off employees, but failed
to present any rational explanation for such change, and
was even unable to recollect when the decision to lay off
was made. I am convinced and find that these circum-
stances lend further support to the General Counsel's
prima facie case and establish that during the normal
course of business that Irwin in August, absent the
employees' union activity, would not have decided to lay
off an employee, let alone lay off Hover.
Even if one assumes that Irwin decided upon a layoff in
August for legitimate economic reasons, it is quite another
matter to accept his proffered reason for choosing Hover,
10 Irwin 's testimony on this point can only be described as evasive He
testified he had no recollection whether at the time he laid off Hover that he
knew Hover had signed a union card , then realizing this was obviously
incredible-Respondent in the mail had received a copy of Hover's
card-Irwin testified (still in response to the question whether he knew
Hover had signed a union card ) that he knew Hover had signed a card but
did not know whether Hover had joined the Union until later on.
ii It is undisputed that employee Bowman late in July told Irwin that
Hover had signed a union card . Also undisputed is the fact that on August 9
Respondent received a copy of Hover's union card in the mail enclosed with
the Union's letter demanding bargaining . Regarding Arreola's withdrawal
from the Union, his letter to the Union seeking to revoke his authorization
655
the most senior employee. An employer cannot, of course,
seize upon the opportunity occasioned by a reduction in
force to weed out an employee because of his union
activities. See, e .g., Heath International, Inc., 196 NLRB
No. 42; N.L.R.B. v. American Casting Service, Inc., 365
F.2d 168, 174 (C.A. 7). See also N. L. R. B. v. West Side
Carpet Cleaning, 329 F.2d 758, 761 (C.A. 6) ("Even though
part of the motivation for discharge might have been a
needed cutting of expenses, such circumstances could not
be legally used to effectuate a companion motive to nd the
company of a union protagonist"). Given these principles,
even if economic conditions normally would have necessi-
tated a layoff, the Company violated Section 8(a)(3) and
(1) of the Act if it selected Hover for layoff because of his
union activities. I am convinced that a preponderance of
the evidence establishes that the Company laid off Hover
for precisely this forbidden reason.
Thus, Irwin testified he selected Hover for layoff over
employee Arreola because in his "personal opinion"
Arreola was a better machine operator who did not receive
as much money as Hover. Other than Irwin's statement
that in his opinion Arreola was a better machine operator,
there is nothing in the record to support this generalization.
Arreola admittedly was paid less than Hover or other print
shop employees for the reason that he was only a trainee.
He operated the 1250 multilith press and was learning to
operate the cutter and folder. Hover, on the other hand, the
most senior employee was capable of performing virtually
all of the work in the print shop. Irwin admitted that Hover
was qualified and was capable of doing the other jobs in
the print shop other than the camera work. Irwin's
admission is understandable when viewed in the light of
Hover's employment history. Hover for approximately his
first six months of employment primarily operated the
1250 multilith press (the press Arreola operates), and then
in about May 1969 commenced to perform the camera
work. Since then he has spent 75 percent of his time
performing camera work and the remainder of his time
operating the 1250 multilith press, the small folder, bindery
equipment, including the papercutter, and sometimes he
would operate the 1850 multilith press. Clearly, Irwin
chose to lay off his most senior employee, skilled in
virtually all the operations of the print shop, instead of a
less experienced, less senior employee who was only a
trainee. Since it is natural for an employer to retain his
most senior employee in a layoff by virtue of his superior
experience, proficiency, and service, the failure to do so,
when the senior employee is a union activist, supports the
inference that the actual motive for the layoff was
unlawful. N.L.R.B. v. American Casting Service, Inc., 365
F.2d 168, 174 (C.A. 7); N.LR.B. v. Tennessee Packers, 390
card was sent August 13 On its face it states, "copy furnished to Tom
Irwin", Arreola in fact gave a copy of this letter to Leadman Heck to
transmit to Irwin.
Regarding the dissolution of Val-Car, Heck first testified he did not
remember the exact date he was told it was going to be dissolved , and then
testified "as I remember it was in August " Later on cross-examination he
admitted his memory was not so good and that it could have been as late as
October before he was told Val-Car was going to terminate its operations
Irwin did not testify that the August 24 layoff was prompted in whole or in
part because at about that time he had been informed that Val-Car was
going to terminate its operations
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F.2d 782, 784 (C.A. 6); N. L.. R.B. v. S.E. Nichols-Dover, 414
F.2d 561, 564 (C.A. 3). The absence of a contractual
requirement or a past practice of following seniority does
not rebut this inference , for it is predicated, not on legal
obligation, but on normal, sound business practice.
Differential Steel Car Co., 75 NLRB 714, 716; Consolidated
Industries, Inc., 108 NLRB 60, 66-67. Here, the inference
that Irwin's selection of Hover instead of Arreola for layoff
was motivated by union animus is bolstered by the fact
that Irwin knew Hover had signed a card designating the
Union as his bargaining representative and knew Arreola
by letter had notified the Union he was canceling his card
and was no longer interested in the Union. 12 Against this
background, even assuming Irwin would have laid off an
employee for economic reasons in August, I am convinced
and find that his selection of Hover over Arreola was
motivated by Irwin's animus toward the Union and his
knowledge that Hover was for and Arreola was against the
Union.
Based on the foregoing, including my observation of the
witnesses , I do not credit Irwin's testimony that he laid off
Hover because of a lack of work; I find that the grounds
advanced by Respondent to justify the layoff of Hover are
not the real reasons for the layoff, that the evidence
introduced by Respondent fell short of dissipating the
unfavorable inference to be drawn from General Counsel's
prima facie case, and that Respondent discharged employee
Hover because of his union activities in violation of
Section 8(a)(3) and (1) of the Act.13
G. The Refusal To Bargain
It is undisputed and I find that all of the lithographer
employees employed at Respondent's facility located in
San Diego, California, excluding all other employees,
office clerical employees, guards, and supervisors as
defined in Section 2(l1) of the Act constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act. On August
9, Respondent received from the Union a letter which,
among other things, informed Respondent that the Union
represented a majority of the bargaining unit employees
and asked for a negotiation meeting to negotiate the terms
of a collective-bargaining agreement. Respondent did not
reply, nor did it answer the Union's subsequent letter of
August 18 reiterating its demand for recognition and
negotiation. Accordingly, I find that the Respondent on
August 9, and continuing thereafter, has refused to bargain
collectively with the Union in an appropriate unit.
The parties stipulated that on August 9 there were seven
named employees employed in the appropriate bargaining
unit (print shop) and, that the status of an eighth, Jim
Heck, was in dispute. As described above, I have
concluded that Heck is a statutory supervisor. According-
ly, I find that Heck is not in the unit and further find that
on August 9, the bargaining unit consisted of seven
employees, six of whom had on June 29 signed union
7= As noted earlier , Irwin's testimony that at the time of the layoff he was
not sure whether he had knowledge that Hover had signed a union card or
that Arreola had sent a letter to the Union revoking his card as incredible,
and I find that Irwin did have this knowledge
i a The fact that there is no evidence that the Respondent discriminated
authorization cards . The cards in unequivocal language
recite that the signer appointed the Union to act in his
behalf to bargain collectively with Respondent.
Based on the foregoing , I find that on August 9 the
Union had been designated as exclusive bargaining
representative by six of the seven bargaining unit employ-
ees, and was the majority representative of the unit
employees at the time of the Respondent 's refusal to
bargain.
Respondent introduced evidence (Arreola's testimony)
bearing on the validity of all the cards . Employee Arreola,
one of the card signers , called by Respondent as a witness,
testified that at the time the employees signed their cards
on June 29 at the Union's office that the president of the
Union, Earl Redlowske, told the group , "the card will not
mean anything until after an election is held " and, further
testified that based on this statement he signed the card.
Arreola's testimony is not corroborated by anyone who
attended the union meeting . Redlowske testified that he
told the employees that the union card would give the
Union authorization to bargain for the employees' unit,
and further testified that he did not believe that he
mentioned the word election when he spoke to the
employees . That Redlowske did not mention an election is
supported by the Union 's actual course of conduct. The
Union submitted to Respondent all of the signed cards and
demanded recognition and negotiations . When Respon-
dent ignored this initial demand , the Union made a second
demand for negotiations . At no time did the Union
petition for an election or indicate that it intended to do so.
Moreover , Redlowske 's credible testimony is corroborated
by the testimony of employees Fisher, Bowman, and
Hover.
In my opinion , Arreola was not a credible witness.
Arreola was unable to remember virtually anything
Redlowske said to the employees except for the above
statement . A university graduate with an excellent com-
mand of the English language , he first testified that he did
not read the union card before signing it, then testified he
did not read much of it . Only when confronted with the
one sentence card which obviously could not have been
filled out without being read did he admit that he had in
fact read the card before signing it. Simultaneous with
signing the card, Arreola filled out and signed an
application for membership in the Union. At first he
testified he had no recollection of filling out and signing
the membership application; he testified he had signed
"another sheet of paper" but did not know what it
contained or that it was a membership application.
Looking at the membership application , it is clear that it
would have been impossible for a man of Arreola's
background and intelligence to fill it out and sign it
without realizing that he was signing an application for
membership in the Union. In short, I found Arreola to be a
most unconvincing witness whose testimony brings to
mind the warning of the Supreme Court that "employees
are more likely than not , many months after a card drive
against the other known union adherents is no defense to Respondent's
discrimination against Hover since discnminatory motivation is not
disproved by the failure to weed out all union adherents See N LR B v
Nabors, 196 F 2d 272, 276 (C A 5), Nachman Corp v N LR B, 337 F 2d
421, 424 (CA 7)
PACIFIC SOUTHWEST AIRLINES 657
and in response to questions by company counsel , to give
testimony damaging to the Union, particularly where
company officials have previously threatened reprisals for
union activity in violation of Section 8(a)(1)." N.L.R.B. v.
Gissel Packing Co., 395 U.S. 575, 608. 1 find that Arreola,
as well as all of the other card signers , voluntarily signed a
clear and unambiguous card , and that Redlowske did not
make the statement attributed to him by Arreola.
Based upon the foregoing and the nature and extent of
Respondent's unfair labor practices committed in a
bargaining unit of only seven employees, I am of the
opinion that under the doctrine of N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, a bargaining order should
be entered. Thus, prior to the receipt of the union demand
for recognition , Manager Irwin questioned employee
Bowman about his union activity , asked him for the names
of the employees who signed union cards and threatened to
close the print shop if the employees supported the Union.
Leadman Heck warned employee Hover that if the Union
got in, employees would be laid off during the slack period
and questioned Hover about his union activity. After the
receipt of the Union's demand for recognition, Leadman
Heck , in the presence of Manager Irwin , solicited employ-
ee Bowman to revoke his union card, threatening that the
Respondent would close the print shop if the employees
supported the Union. Irwin, who was present, did not
disavow this threat which was identical to the earlier one
Irwin had made to Bowman . Heck , in a continuing effort
to persuade Bowman to revoke his union card , reiterated
his threat of shop closure to Bowman on several occasions.
Finally, Irwin laid off Hover, the most senior employee in
the bargaining unit, because of his union activity.
Plainly, where, as here, a small group of employees have
joined in an attempt to obtain union representation, it is
quite likely that each of the employer's hostile and coercive
remarks , though addressed to only certain members of the
group , would reach the ears of the others and have its
intended effect . (See General Stencils, Inc., 195 NLRB No.
173). Indeed, employee Bowman credibly testified that he
transmitted to employees Hover, Fisher, and Einolander
the information that Irwin had interrogated him about the
employees ' union activities and had threatened to close the
print shop and that Heck, in the presence of Irwin, had
tried to persuade him to revoke his union card and had
threatened the employees with plant closure . I also note
that the Respondent made not one threat , but a series of
serious threats which involved nothing short of complete
termination of employment and, if carried out, would
affect every bargaining unit employee . They were made in
substantial part by Respondent's printing and publications
manager , a man who possessed the power not only to
threaten but also to turn the threat into reality. Finally, the
layoff of the most senior employee because of his union
activity carried a message which could not have been lost
on employees in the bargaining unit.
I find , in short, that a bargaining order should be entered
here as the Company 's unfair labor practices may fairly be
characterized as pervasive, and at the very least so
undermined the Union and impeded the election process
as to make a fair election impossible . In my opinion,
Respondent 's conduct-in particular the threats of shop
closure and layoff and the layoff of Hover because he
signed a union card-is of such gravity as to render a
reliable election unlikely, even if the Employer were to
discontinue its unlawful conduct.
CONCLUSIONS OF LAW
1. Pacific Southwest Airlines is engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act.
2. Lithographers and Photoengravers International
Union, AFL-CIO, Local 227, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
interrogating employees about their union activities and
sympathies and about the union activities and sympathies
of their fellow employees , by threatening to close the print
shop if employees supported the Union and by threatening
to lay off employees during slack periods if employees
supported the Union.
4. Respondent violated Section 8(a)(3) and ( 1) of the
Act by laying off employee Vernon Hover on August 24,
1971, because of his union activities.
5. All lithographer employees employed at Respon-
dent's facility located in San Diego, California , excluding
all other employees , office clerical employees , guards, and
supervisors as defined in Section 2(11) of the Act constitute
a unit appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
6. Since August 9, 1971, the above-named labor
organization has been and is now the exclusive representa-
tive of all employees in the aforesaid bargaining unit for
the purposes of collective bargaining within the meaning of
Section 9(a) of the Act.
7. By refusing on or about August 9 , 1971, and at all
times thereafter , to bargain collectively with the above-
named labor organization as the exclusive representative of
all the employees of the Respondent in the aforesaid
appropriate unit, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
8. By the aforesaid refusal to bargain , Respondent has
interfered with , restrained , and coerced, and is interfering
with , restraining, and coercing its employees in the exercise
of the rights guaranteed to them in Section 7 of the Act,
and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
10.. Respondent has not otherwise violated the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(l), (3), and (5) of
the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to
effectuate the policies of the Act.
For the reasons already discussed , I shall recommend an
Order directing that Respondent bargain with the Union
upon the latter's request.
Having found that Respondent discriminatorily laid off
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employee Vernon Hover, I shall recommend that Respon-
dent make him whole for any loss of earnings he may have
suffered by reason of such discrimination , by payment of a
sum of money equal to that which he normally would have
earned as wages from the date of his layoff to January 14,
1972, the date he was offered reinstatement to his former
position, less his net earnings during such period, with
backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and with interest thereon as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the Respon-
dent were of a character which go to the very heart of the
Act, I shall recommend an Order requiring the Respondent
to cease and desist therefrom and to cease and desist from
infringing in any other manner upon the rights of
employees guaranteed by Section 7 of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended: 14
ORDER
Respondent , Pacific Southwest Airlines , San Diego,
California , its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Interrogating employees about their activities and
membership and about other employees ' activities and
membership in Lithographers and Photoengravers Interna-
tional Union , AFL-CIO, Local 227, or any other labor
organization.
(b) Threatening to close its punt shop if employees
support the above-named Union or any other labor
organization.
(c) Threatening to lay off employees during slack periods
if its employees support the above-named Union or any
other labor organization.
(d) Discouraging membership in or activities on behalf of
the above-named Union or any other labor organization
by laying off employees , or otherwise discriminating
against them in any manner with regard to their hire and
tenure of employment or any term or condition of
employment because of their union activities.
(e) Refusing to bargain collectively concerning rates of
pay, wages , hours , and other terms and conditions of
employment with the above-named Union , as the exclusive
11 In the event no exceptions are filed as provided by Sec. 102 .46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
11 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
bargaining representative of its employees in the following
appropriate unit:
All lithographer employees employed by Respondent
at its facility located in San Diego , California,
excluding all other employees , office clerical employ-
ees, and guards and supervisors as defined in Section
2(11) of the Act.
(f) In any manner interfering with , restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Vernon Hover whole for any loss of earnings
suffered by reason of the discrimination against him, in the
manner set forth in the section herein entitled `The
Remedy."
(b) Preserve and , upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records , timecards,
personnel records and reports , and all other records
necessary to analyze the amount of backpay due Vernon
Hover, under the terms of this recommended Order.
(c) Upon request, bargain with the above-named labor
organization as the exclusive representative of all the
employees in the aforesaid appropriate bargaining unit
with respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a
signed agreement.
(d) Post at its place of business at San Diego , California,
copies of the attached notice marked "Appendix." 15
Copies of said notice , on forms provided by the Regional
Director for Region 21, after being duly signed by
Respondent's representative , shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to
insure that said notices are not altered , defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 21 in
writing, within 20 days from receipt of this Decision, what
steps Respondent has taken to comply herewith.16
IT IS FURTHER ORDERED that the consolidated complaint
be, and it hereby is, dismissed insofar as it alleges that
Respondent violated the Act otherwise than as found
herein.
Order of the National Labor Relations Board " shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
19 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 21, in writing, within 20 days
from the date of this Order , what steps the Respondent has taken to comply
herewith."